BULLETINS FROM ALOHA

THE DUKE RAPE CASE AND OUR OWN MR. NIFONG  --  The prosecutor.  Justice Robert  H. Jackson of the United States Supreme Court, had the unique experience of also serving as a prosecutor of Nazi war criminals at Nuremberg in Germany after World War II.   He wrote about the temptations of any prosecutor.  Commenting on a prosecutor's vast powers and immense discretion, and the dangers of abusing them  --  specifically by not "discovering the commission of a crime and then looking for the man who has committed it," but "picking the man" and then "putting investigators to work, to pin some offense on him."  Any prosecutor, Jackson said, "stands a fair chance of finding at least a technical violation of some act on the part of almost anyone."  Renata Adler, Irreparable Harm, Melville House Publishing (2004) at page 40. 

Picture Enron with it's own private police force and it's own private prosecutor.  Then picture Kenneth Lay  in charge of that full staff of prosecutors and investigators with authority to investigate the Board of Directors in their private business lives and even their own private sexual escapades.  Further, picture a team of  Enron's investigators whose only mission is to uncover the misdeeds of this Directoral group in their other professional lives apart from their duties at Enron, if, for example,  they questioned Mr. Lay's decision to create an illegal offshore business to launder drug money.  Imagine that one of the Board of Directors, lets call him Sam, was cheeky enough to formally question one of Mr. Lay's management decisions  to purchase a relative's property, at great expense, for Enron. Also assume Enron had no use for this property.   Moreover, assume that Mr. Lay was owed money by this relative and would get paid if someone bought the relative's land.  Assume further that "Enron Law" gave Mr. Lay the authority to assign a special investigator to Sam's private business matters and formally charge Sam with crimes under "Enron Law" in those private business matters.  Suppose then that  Enron's private investigators and police force along with Enron's prosecutor conspired to charge Sam with high crimes and misdemeanors in his private business matters under "Enron Law" in order to remove this troublesome Board member from Enron's Board of Directors.  Consider further that Mr. Lay had the power to communicate with the other Board of Directors at Enron about Sam's alleged crimes, but there was an Enron Board rule that Sam could not discuss his situation on these private business matter charges with those same Enron Board of Director's members. 

But there was a problem.  The existing Enron rules clearly stated that the only way that Sam could be removed from Enron's Board of Directors was by an impeachment vote by Enron's shareholders.  Mr. Lay knew that wasn't going to happen because Sam had been elected to Enron's Board of Directors by a solid majority of shareholders.  Mr. Lay then  set out upon a diabolical scheme.  Through those back channels of communications with the rest of the Board of Directors, Mr. Lay secretly advised them of Sam's alleged violations in his private business that had been uncovered by Enron's crack team of police, private investigators with the aid and support of Enron's prosecutors.   Only Sam didn't know of these conversations and was concentrating on the welfare of Enron.  Through this back channel, Mr. Lay successfully encouraged Enron's Board of Director's to come up with a 'new rule'.  This new rule stated that if any of the Enron's Board of Directors was under investigation for private business matters by Enron's secret police and so charged by Enron's prosecutors, that particular Board of Directors member could no longer serve on Enron's Board of Directors.  Thusly, Sam was removed from Enron's Board of Governors, er, I mean Board of Directors and silenced for all practical purposes on other Enron misdeeds. 

Then open your eyes and you will see the Oregon State Bar and it's system.